THIS IS A BINDING AGREEMENT between Setore International Pty Ltd ACN 621 995 293 (Setore) and any person (you) who downloads and installs the PoleBuddy App or otherwise accesses the PoleBuddy Website at www.polebuddy.com (App) to subscribe to the App for business management purposes (including to schedule classes and to make those classes available on the App for purchase), and to allow individual instructors to become connected with studios.
By clicking “Accept” and/or by accessing and/or using the App (whichever is first), you agree to be bound by this agreement as it appears as part of the App from time to time. If you do not agree to abide, and be bound, by this agreement, please exit the App and permanently delete it from all your devices.
1. DEFINED TERMS & INTERPRETATION
In this agreement:
Setore Content means all Content made available by Setore to a Studio or Wholesaler for use in connection with the Setore Services.
Setore Services means the business management services, online sales platform services, advertising services and any other services that Setore provides via the App.
App Fees means the subscription fees and other fees specified by Setore from time to time for use of the App and the Setore Services as set out here.
Content means all information or content, whether published on the App or not, including but not limited to all text, artistic works, information, images, photographs, video clips, logos, trade marks, data, text, graphics, links or programming code.
Customers means individuals that purchase Goods and/or Services from a Studio.
Goods means the goods:
(a) listed on the App by a Studio for the purpose of sale to Customers; or
(b) listed on the App by a Wholesaler for selection by a Studio for the purposes of resale to Customers and which will be drop shipped by that Wholesaler directly to the Customer upon purchase.
Initial Term means [12 months].
Intellectual Property Rights means all intellectual property rights, including but not limited to, the following rights:
(a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
Renewal Term means each [12 month] period.
Services means the dance or fitness classes, tickets to events and other services made available for purchase by a Studio via the App.
Studio means a user of the App that is a dance or fitness studio or an individual dance or fitness instructor.
Term means the Initial Term and any Renewal Term.
User Account has the meaning given in clause 2.1.
User Content means all Content submitted or uploaded by a Studio or a Wholesaler for the purposes of selling or offering for sale Goods or Services via the App.
Wholesaler means a user of the App that is a supplier of the Goods to be offered for sale to Studios via the App.
2. REGISTRATION OF USER ACCOUNT
2.1 Registration. You must register a user account in order to use the App and receive the Setore Services (User Account).
2.2 Accuracy. When registering as a user of the App, you must provide us with accurate, complete and up-to-date information as requested on the registration page of the App. It is your responsibility to inform us of any changes to that information. You may do this at any time by accessing your user account page on the App.
2.3 Obligations. We may, in our absolute discretion, refuse registration or close your User Account if:
(a) you register or attempt to register more than one User Account;
(b) you breach this agreement;
(c) you open or attempt to open a User Account using incomplete or falsified details, or otherwise in a fraudulent or illegal way; or
(d) we consider refusal of registration or the closure of your User Account is necessary to comply with our obligations at law.
2.4 Responsibility and security. You acknowledge and agree that:
(a) you are solely responsible for all activities that occur on your User Account;
(b) your password is confidential; and
(c) you will keep your password secure and not disclose it to any other person, nor will you permit your username and password to be given to or used by any other person.
You must change your password regularly and notify us if you have reason to believe the confidentiality of your password is compromised.
2.5 Integration of third party services. You acknowledge and agree that in order to utilise certain functionality of the App, you may be required to set up an account with a third party platform (e.g. Google Analytics, SmartLook, MailChimp and Facebook) and connect your User Account with your account with the relevant third party service provider.
3. SCOPE OF LICENCE
3.1 Licence grant. Setore grants you a non-exclusive, non-transferable licence to use the App from the date you accept this agreement until you delete the App from all your devices.
3.2 Conditions. You must ensure that you only use the App as permitted by this agreement and that you comply with your obligations under this agreement.
3.3 Restrictions. You must not:
(a) copy, modify, add to, adapt, delete or amend any part of the App;
(b) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan or otherwise distribute all or part of the App, or any adaptation, modification or derivative of all or part of the App;
(c) reverse engineer, disassemble, or decompile any software forming part of the App, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(d) use the App for any unlawful purpose; or
(e) allow third parties to do anything inconsistent with the terms of this agreement.
3.4 Updates to App: Setore may modify the App at any time, including by updating, amending or removing particular functions or aspects of the App and makes no representation that the App accessed by you at the date you accepted this agreement will remain the same for the duration of this agreement.
4. SUBSCRIPTION AND PAYMENT
4.1 App Fees. You must pay the App Fees to Setore in accordance with clause 4.2.
4.2 Payment. Setore will invoice you for payment of:
(a) the subscription component of the App Fees on a monthly basis in advance; and
(b) any other component of the App Fees (e.g. commission) on a monthly basis in arrears.
You must pay each invoice issued by Setore within 14 days of the date of the invoice, without any right of set off by the time described on the applicable invoice.
4.3 Interest. If you fail to make a payment required under clause 4.1, at the time provided for in clause 4.2, you will be required to pay interest on the amount of the late payment, from the due date of the payment to the date of payment, at 20% per annum, rate calculated daily on the amount overdue until payment is received by Setore in full.
4.4 No pro-rata refund. The subscription component of the App Fees is payable in advance, and subject to clause 11.2 no part of the App Fees will be refunded to you should the agreement be suspended or terminated in accordance with clause 12 for any reason.
4.5 Remitting payment for Goods or Services. In the case of Studios, if any payments are received by Setore for the purchase of Goods or Services from Customers, Setore will remit such amounts to the nominated bank account of a Studio.
5. NO GUARANTEED ACCESS
5.1 Acknowledgements. You acknowledge and agree that:
(a) while Setore will make reasonable efforts to ensure availability, continuity, reliability, accuracy, currency and security of the App, Setore makes no representations, warranties or guarantees in relation to the App;
(b) the App is provided on an ‘as-is’ basis; and
(c) Setore cannot and does not guarantee that:
(i) access to the App will be uninterrupted or error free;
(ii) the content of the App (including data) is accurate, current, complete or suitable for any particular purpose; or
(iii) the operation or use of the App by you will result in you complying with any relevant laws, procedures, accounting standards, codes of conduct, organisational policies or procedures.
5.2 Unavailability of App. Without limiting clause 5.1, Setore will not be liable if the App is unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Setore’s third party service providers);
(c) maintenance or repairs carried out by Setore or any third party service provider in respect of any of the systems used in connection with the provision of the App;
(d) any events beyond Setore’s control; or
(e) services provided by third parties ceasing or becoming unavailable.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 No transfer. You agree that all rights, title and interest (including all Intellectual Property Rights) in the App vest absolutely in Setore (or its third party licensors). The only rights you have in respect of the App (and the intellectual property rights subsisting in it) are those granted under and subject to this agreement.
6.2 User Content. You may be permitted to upload User Content to the App for display on the App and/or use by Setore from time to time, in accordance with this agreement. You agree that:
(a) you hereby grant to:
(i) Setore a non-exclusive, worldwide, perpetual, transferable, unlimited, irrevocable and royalty-free licence to use, reproduce, modify, distribute, publish, sub-licence and prepare derivative works from the User Content; and
(ii) (in the case of Wholesalers), each Studio a non-exclusive, worldwide, perpetual, transferable, unlimited, irrevocable and royalty-free licence to use, reproduce, modify, distribute, publish the User Content, to the extent necessary to offer the Goods for sale to Customers;
(b) for the avoidance of doubt, you grant to Setore all rights, licences and consents needed by Setore to use the User Content for the purposes of operating the App, conducting any aspect of its business and promoting Setore generally;
(c) to the extent permitted by applicable law, you consent to all or any acts or omissions of Setore (or persons authorised by Setore) in connection with the User Content which would otherwise infringe your moral rights (as that term is defined by the Copyright Act 1968) in any User Content; and
(d) Setore reserves the right to reject, block, modify, suspend or remove any User Content at any time in its sole discretion. Setore makes no guarantee that the User Content will actually be published or used on or in relation to the App. If Setore exercises a right under this clause, you agree that you are not entitled to waiver of any App Fees that may be invoiced to you.
6.3 Warranties for User Content. By uploading User Content to the App, you warrant that the User Content:
(a) is solely your responsibility, and that Setore will be under no obligation to take steps to verify, vet or moderate any User Content;
(b) is not fraudulent or defamatory and does not infringe the Intellectual Property Rights, confidentiality rights, or privacy rights of any person;
(c) is not offensive, defamatory, obscene, vulgar, unlawful, harmful, threatening, abusive, harassing or ethically objectionable;
(d) is current, accurate and up-to-date;
(e) is truthful and contains no false, misleading or deceptive representations;
(f) does not contain information about a third party unless you have the express permission of that third party to do so;
(g) has only been uploaded after you have obtained any releases, permissions or consents required for use of the User Content;
(h) will be continuously updated by you to ensure that it remains accurate and current;
(i) does not contain any computer viruses, macro viruses, trojan horses, worms or anything else which can interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any system, data or personal information; and
(j) will not cause the App to be interrupted, damaged, rendered less efficient or be such that the effectiveness or functionality of the App is in any way impaired.
6.4 Setore Content. If Setore provides you with access to any Setore Content in the course of delivering the Setore Services (such as digital content for use in advertising via the App), Setore grants to you with effect from your acceptance of this agreement, a non-exclusive, worldwide, perpetual, royalty free licence (with no right to sub-license) to use all Intellectual Property Rights in any Setore Content for the purpose of you utilising or otherwise enjoying the full benefit of the Setore Services. You acknowledge and agree that, without Setore’s prior written consent, this licence does not permit you to use the Setore Content in any media outside of the App.
7.1 Privacy Statement. Any information submitted by you in the course of downloading, installing or using the App is governed by our Privacy Statement available at www.polebuddy.com.
7.2 Disclosure of information. You acknowledge and agree that Setore may:
(a) analyse or disclose any data or information submitted or generated via the App for our own business purposes, provided that we do so on an anonymised or non-attributable basis, without disclosing your identity or any third party from whom the data or information has originated; and
(b) disclose any information collected by Setore via the App to a third party to the extent necessary to provide the Setore Services.
8.1 Prohibited conduct. You must not:
(a) transmit or post any information or material via the App or the Setore Services (including to send messages to another user of the App) which is offensive, defamatory, obscene, unlawful, false, misleading, vulgar, harmful, threatening, abusive, harassing or ethically objectionable;
(b) attempt to change, add to, remove, deface, hack or otherwise interfere with the App or any material displayed on the App, save and except for changing, adding to or removing your own User Content;
(c) impersonate any other person, real or imagined, or use another person’s account;
(d) (in the case of a Wholesaler) fail to deliver any item(s) you have sold and which has been paid for;
(e) manipulate the price of any item or interfere with any other Wholesaler’s listing(s);
(f) transfer your account and/or User ID to any other person, without Setore’s written consent;
(g) (in the case of a Wholesaler) provide your contact information (including telephone number and email address) to any other user through any means of communication including via the User Content, messaging service or any other means. All communication between users must occur through the messaging service provided by the App; or
(h) post content which enables or encourages the purchase of items outside of the App, such as including any URLs, hyperlinks, web addresses or any other information in User Content, emails, notifications, feedback or any other method of communication, intended to divert users away from the App.
8.2 Warranties in relation to Goods. If you are a Wholesaler or a Studio that offers Goods for sale to Customers, you warrant that:
(a) subject to (b), the Goods that you offer for sale via the App are new,
(b) if the Goods that you offer for sale are not new, they are clearly identified as second-hand and their condition is accurately and honestly identified;
(c) the Goods that you offer for sale via the App are fit for their specified purpose and of acceptable quality and are not counterfeit or stolen;
(d) you have clear and unencumbered title to all Goods listed for sale;
(e) you have complied with all applicable laws in its jurisdiction in relation to the Goods and the User Content, including the Australian Consumer Law; and
(f) you will deliver to a Customer an order for Goods in accordance with any estimated delivery timeframe provided at the time of purchase.
9.1 Consideration does not include GST. Unless specifically described in this licence as ‘GST inclusive’, any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this licence does not include any amount on account of GST.
9.2 Gross up of consideration. Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this licence is subject to GST (other than a supply the consideration for which is specifically described in this licence as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply (GST Amount); and
(b) the Recipient must pay the GST Amount to the Supplier, without set-off, deduction or requirement for demand, at the earlier of:
(i) the time that the GST Exclusive Consideration is payable or to be provided; and
(ii) the time that the Supplier has to pay the GST in respect of that supply.
9.3 Reimbursements. If any payment to be made to a party under or in accordance with this licence is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with the preceding sub-clause.
9.4 Tax invoices. Notwithstanding any other provision of this licence, the Recipient need not make any payment for a taxable supply made by the Supplier under or in accordance with this licence until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
9.5 Adjustments. If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this licence, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred.
9.6 Interpretation. A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
10.1 Acknowledgements. You acknowledge and agree that:
(a) Setore is not the supplier or seller of any of the Goods;
(b) Setore does not moderate interaction between users, including transactions between Wholesalers, Studios and/or Customers for the sale and purchase of Goods or Services via the App;
(c) Setore has no control over the quality, fitness for purpose, safety or legality of the Goods supplied direct by Wholesalers to Customers, the compliance of any Goods with any applicable laws in any jurisdiction, the truth or accuracy of any User Content or the ability of a Wholesaler to provide the Goods;
(d) Wholesalers and Studios (as applicable) are entirely responsible for all Goods advertised via the App;
(e) contracts for the purchase of Goods and/or Services are formed directly between users (i.e. a Wholesaler and a Studio, and a Studio and a Customer), and do not involve Setore;
(f) any dispute between you and another user (including between a Studio and a Wholesaler, or a Studio and a Customer), must be resolved directly by those users, and Setore is under no obligation to resolve or assist you in resolving a dispute with another user;
(g) Setore takes no responsibility whatsoever for the accuracy or truthfulness of information or User Content supplied by any user (including a Wholesaler) which is displayed on the App; and
(h) without limiting paragraph (g), Setore takes no responsibility whatsoever nor makes any representations, either express or implied, as to lawfulness, quality, accuracy, reliability or credibility of information or material supplied or made available by users and any third parties, including User Content, on the App.
10.2 Title and risk. In the case of a Wholesaler, Setore has no responsibility for the transfer of risk or legal title of items from you to the Customer.
10.3 Third party websites. The App may contain links to other third party websites. Setore is not responsible for the content of any other websites or pages linking to or from the App. Any links to another website should not be construed as endorsement or recommendation of any information or goods and services contained on or from that website or its operator.
10.4 Overseas access. If you access or use the App from outside Australia, you do so at your own risk and are responsible for ensuring compliance with all laws in the place from which you access or use the App (or buy, sell or receive any Goods). Setore does not represent or guarantee that the App, or your use of the App, will comply with the laws of any country from you may access the App.
11. INDEMNITY AND EXCLUSIONS AND LIMITATIONS OF LIABILITY
11.1 Indemnity. You indemnify Setore (and all its related bodies corporate and its personnel) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising directly or indirectly out of or in connection with:
(a) death or personal injury arising in connection with your use of the App;
(b) any breach of this agreement by you; or
(c) any suit, claim or demand brought or made against Setore by or due to your conduct, acts or omissions.
11.2 Consumer guarantees. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Setore are excluded under this agreement. However, if a supply under this agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in this agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to the extent the Australian Consumer Law permits Setore to limit its liability, then Setore’s liability is limited to (at Setore’s option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
11.3 Exclusion of liability. Subject to clause 11.2, Setore excludes liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by any person:
(a) in connection with or in any way relating to the App or its use, including (without limitation):
(i) any death or personal injury arising in connection with your use of the App;
(ii) any disruption to or unavailability or failure of the App or interference with or damage to any electronic systems or devices;
(iii) errors, omissions or inaccuracies contained in any information published on the App or supplied by Setore to you via email or otherwise;
(iv) as a result of any fraudulent use, misuse or misappropriation of the App or any part of the App; or
(v) as a result of any act committed by another person in connection with your use of the App;
(b) arising from any circumstance beyond its control; or
(c) otherwise under or in connection with this agreement.
12. TERM AND TERMINATION
12.1 Term. This agreement continues for the Term until terminated by you or by Setore.
12.2 Roll over. If you do not give notice of termination for the App during the then-current term of this agreement, this agreement will automatically roll over for a Renewal Term and you will be required to pay all applicable App Fees for that Renewal Term in accordance with this agreement.
12.3 Your right to terminate. You may terminate this agreement at any time by giving 30 days written notice to Setore and permanently deleting the App from all your devices.
12.4 Setore’s right to terminate.
(a) Setore may:
(i) suspend your access to or use of the App for any reason, at any time and for any period including if you are in breach of any term of this agreement, and Setore is not required to end the suspension until the breach has been rectified to Setore’s satisfaction; and
(ii) terminate this agreement if you fail to rectify the breach within 30 days of Setore providing written notice to you.
(b) If any third party licence rights relating to the App granted to Setore (or otherwise made available to Setore) are materially altered, expire, are suspended or are otherwise terminated, Setore may terminate this agreement if and to the extent that Setore is no longer able to make the App available to you.
13.1 Force majeure. Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party.
13.2 Governing law. This agreement is governed by the laws of the State of South Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
13.3 Assignment. You may not assign your rights under this agreement, nor attempt or purport to do so.
13.4 Representation and warranty. You represent and warrant to Setore that:
(a) you are not located in a country that is subject to a United States Government embargo or a country that has been designated by the United States Government as a ‘terrorist supporting’ country;
(b) you are not on any United States Government list of prohibited or restricted parties; and
(c) you will not export from anywhere any part of the App provided to you except in compliance with, and with all licenses and approvals required under, applicable Australian export laws, rules and regulations.
14. VARIATION OF TERMS
14.1 Setore may vary terms. Setore reserves the right to revise and amend this agreement in its discretion, as follows:
(a) if Setore considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended agreement (or a link to the amended agreement) on the App; or
(b) if Setore considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change solely by displaying a notice on the App describing the change. Without limiting Setore’s right to vary this agreement, Setore expressly reserves the right to change the App Fees or introduce new fees from time to time.
14.2 Deemed agreement to variation. Your continued use of the App after an amendment will mean that you agree to that amendment. You must stop using the App if you do not agree to an amendment.
15. APPLE-SPECIFIC TERMS AND CONDITIONS
In addition to your agreement to be bound by and abide by the terms of this agreement, you further acknowledge and agree to the following provisions with respect to your use of the version of the App that is compatible with the iOS operating system of Apple Inc (Apple):
(i) is not a party to this agreement and is not responsible for the App nor the content contained in the App;
(ii) is not responsible for providing any maintenance or support services in respect of the App and has no obligation whatsoever to furnish any maintenance or support services in respect of the App;
(iii) is not providing any warranties for the App, except if applicable, to refund the purchase price for it;
(iv) is not responsible for addressing any of your claims in relation to the App, including:
(A) product liability claims;
(B) claims relating to a failure of the App to conform with any legal or regulatory requirement; or
(C) claims arising under consumer protection legislation; and
(v) is not responsible for any claim that the App or your possession or use of the App infringes any third party’s intellectual property rights, nor is Apple responsible for the investigation, defence, settlement or discharge of any such claim. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Setore at email@example.com.
(b) Apple and Apple’s subsidiaries are third party beneficiaries of this agreement and, from the date on which you accept this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you. Setore’s right to enter into, rescind or terminate any variation, waiver or settlement under this agreement is not subject to the consent of any third party.
(c) The licence you have been granted under this agreement is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set out in Apple’s App Stores Terms of Service.